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UNITED STATES v. A MOTION PICTURE FILM ENTITLED "I

May 3, 1968

UNITED STATES of America, Plaintiff,
v.
A MOTION PICTURE FILM ENTITLED "I AM CURIOUS-- YELLOW" ("Jag Ar Nyfigen-Gul") (35 mm., Black and White, 6 Double Reels, 11,746 ft., Swedish soundtrack with English subtitles) Grove Press, Inc., Claimant



The opinion of the court was delivered by: MURPHY

THOMAS F. MURPHY, District Judge.

 In this action brought pursuant to 19 U.S.C. § 13051b to forfeit and confiscate an imported Swedish motion picture with English subtitles, entitled I AM CURIOUS - YELLOW, the claimant, Grove Press, Inc., moves for summary judgment. Its argument is two-fold: (1) that 19 U.S.C. § 1305 is unconstitutional on its face and as applied, and (2) that the motion picture cannot, as a matter of law, be held to be obscene, because it is self-evident that it is not, and because the government has admitted that the film has social value. The government defends the constitutionality of § 1305 both on its face and as applied to the facts in this case and denies that the film has any redeeming social value, admitting only that ideas are expressed in the film "that have value and the film can be said on that basis, taken in the abstract, to have value."2b

 CONSTITUTIONALITY OF § 1305 ON ITS FACE.

 The Court of Appeals in United States v. One Carton Positive Motion Picture Film Entitled "491", 367 F.2d 889 (2d Cir. 1966) unanimously upheld the constitutionality of § 1305, rejecting many of the arguments now advanced. It found that § 1305 met the standards enunciated in Freedman v. State of Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965) and rejected the argument that it was necessary for the statute to have built-in specific time limitations, a position taken by the claimant herein. 367 F.2d at 899. The court stated that the "only restraint contemplated by Section 305 [of the Tariff Act] is that reasonably necessary intelligently to select material for judicial review and reasonably necessary for a sound judicial resolution of the obscenity question. Nothing in the section precludes a prompt final judicial determination of obscenity. Indeed, the section is designed to avoid unnecessary delay at both the administrative and judicial stages of the proceedings." 367 F.2d at 900.

 The claimant argues, however, that Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S. Ct. 754, 19 L. Ed. 2d 966 (1968) impliedly rejects the constitutional analysis of § 1305 made in " 491 ". In a per curiam opinion, the Supreme Court in striking down a Chicago ordinance, reiterated the Freedman rule as follows: "In Freedman v. State of Maryland, 380 U.S. 51, 58-59, 85 S. Ct. 734, 13 L. Ed. 2d 649, we held '* * * that a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. * * * To this end, the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. * * * [The] procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.' The Chicago censorship procedures violate these standards in two respects. (1) The 50 to 57 days provided by the ordinance to complete the administrative process before initiation of the judicial proceeding does not satisfy the standard that the procedure must assure 'that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film.' (2) The absence of any provision for a prompt judicial decision by the trial court violates the standard that '* * * the procedure must also assure a prompt final judicial decision * * *.'" 390 U.S. at 141-142, 88 S. Ct. at 755. The simple answer to claimant's argument is that Teitel reaffirms and repeats the rule in Freedman, which rule our Court of Appeals in " 491 " has told us § 1305 complies with. See United States v. 392 Copies of Magazine Entitled "Exclusive", 253 F. Supp. 485 (D.Md.1966).

 Claimant also argues that § 1305 is ineffective in a constitutional sense because it fails to assure an adversary hearing prior to seizure, which hearing, it says, is required by Marcus v. Search Warrant, 367 U.S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963) and Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1964). These cases, relating to the power of states to control the problem of the publication and sale of obscene material, and involving overly broad seizure warrants, loosely regulated administrative censorship and other abuses of due process amounting to unconstitutional prior restraints, have little or no relevancy to the seizures here or the power of Congress to regulate the importation into this country of obscene material in the manner set forth in § 1305. Under § 1305, no final valid restraint is imposed except by judicial determination. United States v. One Carton Positive Motion Picture Film Entitled "491", 248 F. Supp. 373, 376-377 (S.D.N.Y.1965). Further, it is clear that prior restraints are not per se unconstitutional. Times Film Corp v. City of Chicago, 365 U.S. 43, 81 S. Ct. 391, 5 L. Ed. 2d 403 (1961).

 THE CONSTITUTIONALITY OF § 1305 AS APPLIED.

 Claimant argues that "it was nineteen days after [the film's] arrival and detention at the Port of New York Customs Office before a court action was instituted by the Customs Bureau, to seek to prove the film was obscene and not protected; and it is now 115 days following that arrival and detention, and 100 days following the film's official 'seizure' that Claimant, Grove Press, has secured its first opportunity to contest the Bureau's censor's determination of 'obscenity', and demonstrate to a court that its film is not worthless 'obscenity', but a film plainly manifesting social value, requiring protection." *fn3"

 The uncontested chronology of administrative action taken by the Bureau of Customs prior to the seizure of the film on January 15, 1968, and the subsequent legal steps are as follows:

 
December 30, 1967 - The film arrived at John F. Kennedy International Airport, New York, N.Y.
 
January 4, 1968 - A customs house broker acting for claimant entered the film under Entry #551718.
 
January 5, 1968 - The film was delivered to the customs house broker for delivery to the United States Custom House at 201 Varick Street, New York City, for screening.
 
January 8, 1968 - The film was received at 201 Varick Street.
 
January 12, 1968 - The film was screened at 201 Varick Street by two officials of the Division of Import ...

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